ROBINSON HURON—Last Friday, the Supreme Court of Canada (SCC) released its decision in the Restoule case regarding Ontario’s appeal of Stage 1 and 2 of the Robinson Treaties annuity cases. The Robinson Huron Treaty Litigation Fund (RHTLF) is very happy with the decision, which vindicates the essential position taken by the RHTLF throughout this legislation.
Justice Mahmud Jamal, delivered a unanimous ruling on the Robinson Huron and Robinson Superior treaties, determining that the crown “dishonourably breached” a key part of these 1850 agreements. The decision stated that the Crown failed to “diligently fulfill” the augmentation clause of the original treaties, which entitled members of the Huron and Superior First Nations to annuities that were supposed to increase over time.
Because these annuities haven’t increased since 1875, Justice Jamal wrote that the Crown is “obliged” to determine an amount of “honourable compensation” to the Superior plaintiffs. If the Crown and the Superior plaintiffs cannot arrive at a negotiated settlement, the Crown will be required, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate the Superior plaintiffs for past breaches.
As has been reported previously, Huron plaintiffs have already finalized a $10 billion settlement through the provincial and federal governments, with these payments expected to be released this summer.
The Court confirmed that the Robinson Huron Treaty is an alliance of equals, said the RHLTF. It is a nation-to-nation relationship based on mutual interdependence.
The Treaty contains a sacred promise to share the wealth of the territory in accordance with Anishinaabe legal principles of reciprocity, respect, responsibility and renewal.
The Court confirmed the obligation of the government to work with the Anishinaabe to implement the Treaty and held that the court can order a remedy if there is no agreement between the parties.
And although the SCC allowed Ontario’s appeal in part, finding a role for Crown discretion in the implementation of the Treaty promise, it soundly rejects Ontario’s suggestion that the discretion to be exercised under the Treaty was unreviewable, rather a court can assess whether decisions about annuity increases are consistent with the honour of the Crown.
RHTLF spokesperson Duke Peltier said, “As a result of the SCC decision today which partially acknowledge some level of Crown discretion regarding annuities augmentation, it is important to note that the RHT leadership were wise to negotiate a settlement agreement regarding past compensation in the face of the uncertainty of the outcome of the Ontario appeal to the SCC.”
Chief Angus Toulouse, of Sagamok Anishinawbek First Nations, said “The SCC decision is a balanced result. The decision highlights the need for Canada and Ontario to reach a fair settlement with RHT First Nations for the implementation of the annuities augmentation clause of the RHT going forward. The Robinson Huron Treaty leadership call upon Prime Minister Trudeau and premier Ford to honour the commitment included in the past compensation settlement agreement to renew the Treaty Relationship and as well as the commitment by Canada and Ontario to fulfill the treaty promises of the Crown relating to the annuities augmentation clause for the future.”
“For over 20 years the Supreme Court of Canada has been stating that reconciliation is a key imperative embodied in section 35 of the Constitution Act, 1982, which affirms Aboriginal and treaty rights,” said Chief Patsy Corbiere. “The honourable course of action for Canada and Ontario is to work with us to achieve a negotiated settlement and not delay the inevitable that the Crown made a commitment to the Robinson-Huron Treaty Anishinabek and the law requires the Crown to live up to their legal obligations.”
The RHTLF settled the past compensation component of their annuity claim under the Robinson Huron Treaty in January 2024, for $10.0 billion, half of which has been paid by Ontario and half of which has been paid by Canada. It is the largest treaty settlement in the history of the country and the SCC decision does not affect that settlement agreement.
The SCC recognized and reaffirmed that the Robinson Huron Treaty is a nation-to-nation agreement according to which the Crown and the Anishinaabe came to terms regarding their future coexistence within the Treaty territory. Under the treaty, the parties agreed to share the land and resource wealth in a way that would enable them to sustain both the Anishinaabe and the newcomers going forward.
The SCC also affirmed that the annuity augmentation promise is a constitutionally protected right under s.235 of the Constitution Act, 1982. Moreover, like all treaty rights, the entitlement to annuities is a collective right intended to sustain the Anishinaabe First Nations communities going forward, and through the communities, entitlement to annuities also benefits community members.
The SCC also agreed that the Anishinaabe were entitled to a remedy, after 160 years of the Crown’s failure to fulfill their treaty promise to augment the annuity. The Court based the entitlement to relief on the principle of the honour of the Crown and the duty of diligent implementation.
“The SCC did allow a part of Ontario’s appeal regarding Crown discretion over augmenting the annuity,” the RHTLFG said. “Essentially the SCC said that the obligation of the Crown is to consider whether the economic conditions allow the Crown to increase the annuity without incurring loss and by how much through honourable engagement with the treaty partners. The SCC noted that the outcome could be subject to review by a court, otherwise the Anishinaabe would be forced to continue to rely on a historically dishonourable treaty partner.”
“The RHLTF, welcomed the importance and usefulness of the declaratory relief for the go-forward negotiations. The settlement agreement for past compensation signed with Ontario and Canada in January 2024 already commits the parties to implement the augmentation promise going forward. The Crown still only pays $4 per person per year, which will have to change. The parties to the settlement agreement also accept Anishinaabe principles of respect, responsibility, reciprocity and renewal. The declaration will further provide impetus and guidance for the go-forward negotiations.”
In the SCC ruling, Justice Jamal called the $4 cap “shocking” and a mockery of the Crown’s original promise.
